Drones can be shot down, German businesses warned

Out-Law News | 28 Jun 2019 | 3:33 pm | 3 min. read

Businesses in Germany could have their drones shot down by property owners if they fail to operate the machines responsibly. That is the warning from a technology law expert following a court ruling.

Munich-based Igor Barabash of Pinsent Masons, the law firm behind Out-Law, said a local court in Riesa, a town in eastern Germany between Dresden and Leipzig, confirmed the right of property owners to shoot down drones that invade their privacy in certain circumstances earlier this year.

Businesses that operate drones in Germany should review how their drones are piloted as a result of the ruling, Barabash said.

The case before the Riesa court concerned attempts to prosecute of a home owner for the alleged unlawful damage or destruction of an object under Germany's Criminal Code after the man shot down a drone operated from a neighbouring property in his concealed garden.

The Riesa court acquitted him of the charge, however, after determining that the man had acted justifiably in a so-called "defensive state of emergency".

Under section 228 of the German Civil Code, anyone who damages or destroys a foreign object in order to "avert an imminent danger from himself or another" does not act unlawfully. This defence applies if the damage or destruction is necessary to avert a danger and the damage is not disproportionate compared to such a danger.

The court considered that the conditions for the defence to apply arose in the circumstances that the home owner faced.

According to the ruling, the man was in his garden with his wife and young children when his wife noticed that drone being flown overhead was following her movements. The family felt threatened by the drone and the man shouted a warning to remove the drone. The drone pilot was standing at the nearby property and was not visible due to high hedges surrounding the garden. The home owner then used his air rifle, which is freely available on the market, and shot the machine, completely destroying it.

The Riesa court said the drone pilot was responsible for breaching the family's personality rights by invading their private space. The court assumed that the drone pilot had been recording images with the drone, and it considered, as an aggravating factor, the fact that people would not expect images of them to be captured from above.

Under section 201a of the German Criminal Code it is a criminal offence to unlawfully create or transmit pictures of another person located in a dwelling or a room especially protected from view in breach of their intimate privacy. This also includes in a garden protected against viewing, as well as in cases where there is real-time transmission of images even if the images recorded are not permanently stored anywhere.

The Riesa court also said that the home owner's property rights had been infringed by the low flight of the drone over the garden without his consent.

According to German air traffic regulations, the operation of unmanned aerial systems and aircraft models over residential properties is prohibited if the take-off mass of the device is more than 0.25kg or if the device is capable of "receiving, transmitting or recording optical, acoustic or radio signals". These rules applicable to drones were introduced in Germany in 2017. An exception applies if the owner agrees to the overflight.

In this case, the drone pilot escaped prosecution as no criminal complaint had been filed.

Barabash said that while the court's ruling did not introduce any new principles of law, it was noteworthy to see long standing rules applied to drones. He said there were lessons for businesses operating drones to learn from the case.

"The decision does not constitute a free ticket for trigger-happy drone victims," Barabash said. "In principle, in a comparable situation, more moderate measures, including escape, will be considered a more proportionate response. However, in this case, the low altitude of the drone's flight and its following of the home owner's wife were considered to go well beyond mere annoyance and justified the shooting of the drone."

"For businesses the implications of the ruling are that individuals piloting drones being operated for commercial purposes could face criminal prosecution, even if acting on instruction by their employer. In addition, the businesses themselves could face the loss of an expensive drone with no right to claim damages for its destruction if the drone is used invasively," he said.

"The best way to avoid such a scenario is to operate within the respective rules of law. Businesses could consider additional precautions such as requesting clear and unambiguous permission of the respective property owner to operate the drone above their premises, and they should refrain from operation where property owners have taken steps to ensure privacy from outsiders. Operators should also closely monitor flights so as to be able to withdraw the drone in case a 'defensive state of emergency' occurs," Barabash said.